This article is written by Pratap Alexander Muthalaly, from the Government Law College, Trivandrum. It examines the role played by the Court of Arbitration for Sport (CAS) in the modern era, examining some of its most notable judgments and also analysing the working procedure of CAS.
Table of Contents
What is CAS?
Formed in 1984, the Court of Arbitration for Sport (CAS) is an international body that was set up to resolve disputes through arbitration. CAS is not a court in the conventional sense, that is the parties don’t go to trial. For a dispute to be heard by CAS, it has to be a sports-related dispute and both parties must give assent in writing that the case is to be submitted to the court.
CAS also has its own set of rules and procedures (procedural rules) to ensure its smooth functioning and to avoid any ambiguities in decision making. The CAS also has nearly 300 arbitrators from 87 different nations, who collectively deal with roughly 300 cases yearly.
Organisational structure
For the resolution of sports-related legal disputes, two institutions were established, the former being CAS and the latter being the International Council of Arbitration for Sports or (ICAS). While CAS actively provides the dispute resolution service, ICAS is concerned primarily with the management and administration of the CAS.
CAS is further subdivided into two units, (i) the Ordinary Arbitration Division which functions as a court of first instance (where proceedings begin), and (ii) the Appeals Arbitration division, which is concerned with resolving the decisions of federations, associations, or any other sports-related body on appeal. In addition to this, in accordance with rule 61 of the Olympic charter, any dispute in connection with the Olympic games will be submitted directly to CAS.
Types of Disputes
As stated earlier, any dispute related to sports can be referred to the CAS. These disputes however can vary in their specific nature. Some of the disputes that appear before CAS include:
Commercial disputes
Player transfers, media rights, disputes related to TV rights, and conflicts related to sponsorship rights are some of the many kinds of commercial disputes that appear before CAS. Disputes of this nature normally fall under the Ordinary Arbitration Division.
Sports organisation related disputes
The cases that normally fall within this grouping are related to the cases declared by various sports organisations. Racism, In-game violence, abuse of officiating officials, doping, and cases on ethical issues all fall in this bracket.
Selection process of Arbitrators
In the regular course of things, the case in question is submitted before a panel of three arbitrators.
Under the ordinary procedure, each party chooses one arbitrator from the CAS list, then the two designated arbitrators agree on who will be the president of the panel. On failure to reach an agreement, the President of the Ordinary Arbitration Division makes this selection instead of the two arbitrators.
Under the appeals procedure, each party may choose an arbitrator, and the president of the panel is selected by the President of the Appeals Arbitration Division.
If the parties agree, or if the CAS deems this appropriate, a sole arbitrator may also be appointed, this is of course after considering the nature and importance of the case.
The arbitrators must be independent, that is to say have no particular connection with any of the parties, and must not have played any role in the case in question.
CAS Procedures
Ordinary Arbitration Procedures
CAS arbitration procedures are more or less the same as regular arbitration procedures. The process is as follows:
- Parties submit a written request for arbitration.
- Exchange of submissions along with all necessary evidence.
- If there is a failure to submit on time, then it is automatically deemed to be a withdrawal of submission.
- Similarly if there is a failure to submit a counterclaim, the panel in place will move to render the award.
- Parties and witnesses present are to present their arguments and statements in pleading sessions.
- Hearings are not mandatory, written submissions are sufficient enough to make a decision. In the situation where a hearing is conducted, it is to be done on camera unless both parties have agreed otherwise.
- Also, the awards passed at this stage are subject to appeal, if it is in a court of first instance.
Appeals
In the case of an appeals based proceeding, both the general and specific rules of the CAS code are applicable.
(i) Normally an appeal commences when an appellant files what is called a “Statement of Appeal” to the CAS, which must include:
- A copy of the decision subjected to appeal,
- a request for relief(this must include the name of the chosen CAS arbitrators, or whether a single arbitrator is preferred or whether there is a request to stay the execution of the decision.
(ii) Next the appellant will deliver detailed arguments under also known as the “Statement of Appeal” within a reasonable period.
(iii) Then the CAS will invite the respondent to present their arguments and defenses and also the response to any of the appellant’s statements.
(iv) Failing to submit written statements will essentially mean a withdrawal of submissions as would be the case with normal proceedings.
(V) Following the exchange of written statements, the parties are not allowed to present any new evidence except by the mutual consent of both parties or with the permission of the panel that was set up, this however is reserved only for exceptional circumstances.
(vi) After this the appeal panel has complete authority to conduct a fresh review into the issue at hand. On the basis of this, it can choose to issue a new award which may replace the previous decision or cancel the prior decision and send it back to an earlier panel.
CAS Awards
In arbitration, an award is the equivalent of a decision granted by the arbitrators in their verdict. An award can be a form of financial payment one party has to pay to the other party. It can also take other forms, such as stopping a certain business practice or some other form of compensation.
An award pronounced by the CAS is final and binding on all parties involved from the moment it is communicated. This is in accordance with the New York convention on the recognition and enforcement of foriegn arbitral awards.
In case one of the parties want to appeal, judicial recourse to the Swiss Federal Tribunal is allowed on a very limited number of grounds, such as lack of jurisdiction, violation of elementary procedural rules (e.g. violation of the right to a fair hearing) or incompatibility with public policy.
Major Cases/Disputes
Caster Semenya hyperandrogenism ruling
Caster Semanya is a 28-year-old Olympic athlete specialising in 800m races. She won her first world championship in 2009 and went on to win a further two titles in 2012 and 2017. Also in 2016, she won gold at the Rio Olympics. Her incredible success and overwhelming dominance raised doubt and suspicion among many. It was later discovered that she had a hormone disorder causing her to have higher levels of testosterone, commonly classified under the umbrella of Differences of Sexual Development (DSD).
In fact, before being able to compete in 2009, she was made to undergo gender verification testing to confirm her eligibility as a woman. She was also put on medication to reduce her testosterone levels and spent six months on the sidelines as dictated by the International Association for Athletics Federations.
All of this resulted in the formation of DSD regulations, that athletes like Semenya would have to follow if they wanted to compete in races. Semanya refused to agree to this bit of legislation and the matter was taken to the CAS in Lausanne, Switzerland.
The CAS on the 1st of May 2019 delivered in favour of the IAAF regulations on DSD deeming them ‘necessary’ and ‘reasonable’ A similar opinion was held by the Swiss Federal Supreme Court on appeal. This decision was highly divisive and was met with disapproval amongst many members of the sports fraternity and the question on whether athletes with hyperandrogenism can compete continues to raise debate across various sections of the public, including legal professional, sport person(both active and retired) and members of the general public.
Irish Football FA Case
On the 3rd of November 2009, the Football Association of Ireland (FAI) submitted a request to FIFA to allow the player Daniel Kearns, (then contracted to West ham United) to represent the national team of the FAI on the basis of his dual British and Irish nationalities. A single judge panel of the FIFA Players’ Status Committee decided that Kearns fulfilled the necessary objective requirements provided by Article 18 of the Regulations Governing the Application of the FIFA Statutes, since the player had never represented Northern Ireland in official competition at an international level. The IFA, the governing football body Northern Ireland, filed an appeal with CAS on 2 March 2010 and the case was heard by a CAS Panel in Lausanne on 19 July 2010.
The CAS Panel dismissed the appeal and confirmed the decision issued by the Single Judge of the FIFA Players’ Status Committee, which recognized that Daniel Kearns was eligible to play for the national team of the FAI.
Michel Platini Ban
Widely considered one of the biggest controversies in Football history, this case revolved around the banning of UEFA chairman Michel Platini. Platini was found guilty by Fifa of taking an unexplained payment of two million Swiss francs (£1.35m) from then FIFA president Sepp Blatter in 2011. He claimed the sum was a legitimate salary payment. Fifa however maintained that the transaction had no legitimate basis. This scandal essentially put both Platini and his senior contemporary Sebb Blatter out of the reckoning. Platini was initially given an eight-year suspension from all football-related activities at national and international levels and was fined CHF 80,000 by the adjudicatory chamber of the FIFA Ethics Committee. The sanction was upheld by the FIFA Appeal Committee, which reduced the length of the suspension to six years.
Platini then appealed against this decision to the Court of Arbitration for Sport (CAS). He alleged, in particular, that the Articles of the FIFA Code of Ethics relied upon had not been applicable at the time of the relevant acts and that the sanction appeared excessive. The CAS rejected this complaint but reduced the suspension period from six years to four and the fine from CHF 80,000 to CHF 60,000.He then lodged a civil-law appeal against the CAS decision before the Swiss Federal Court, which once again upheld that decision.
Manchester city banning case
In February 2020, Manchester City lodged an appeal to CAS against UEFA’s decision to ban the club from European competitions for the following two seasons and to fine it €30,000,000 for alleged breaches of Financial Fair Play and Club Licensing regulations.It was also held guilty by UEFA’s adjudicatory chamber of overstating its sponsorship revenue in its accounts and in the break-even information submitted to UEFA between 2012 and 2016. Furthermore, City was also charged with a failure to cooperate in the investigation of the case by UEFA officials.
After being presented with all the evidence, the CAS overturned City’s two-year ban from European competition and also reduced the club’s fine from 30m euros to 10m euros.
Man City was however criticised for “severe breach” by failing to properly cooperate with UEFA. However, the club did provide the CAS with all of the emails that had formed the basis of UEFA’s charges. According to CAS no malintent could be drawn from Man City’s earlier hesitation to present the emails to UEFA.
Inspite of all this City were, however, punished for failing to properly co-operate with UEFA’s investigation process due to their refusal and failure to provide sufficient evidence before the case was put forward before the CAS panel.
Conclusion
Currently, in the world of sport, the role of CAS continues to expand and grow, with many high profile cases in the last decade being entrusted in their hands. The success of CAS is largely due to its transparent process and effective operating structure. CAS also manages to respect the wishes of all parties in the selection of arbitrators and operates in a largely unbiased manner. However, CAS too has not gone without criticism as seen in the aforementioned Semenya ruling.
References
- https://www.tas-cas.org/en/general-information/frequently-asked-questions.html
- https://www.lexology.com/library/detail.aspx?g=26d596bc-2e14-414e-a59d-ff23bbbe12f8
- https://www.mondaq.com/turkey/court-procedure/387176/a-general-overview-on-court-of-arbitration-sports-rules#:~:text=The%20Court%20of%20Arbitration%20for,for%20any%20sports%2Drelated%20disputes.&text=These%20panels%20are%20responsible%20to,in%20accordance%20with%20the%20Rules.
- https://www.hindustantimes.com/football/michel-platini-loses-fifa-ban-appeal-at-european-human-rights-court/story-03l4qRBxtT5h603WLlG67M.html
- https://www.bbc.com/sport/football/53571659
- https://www.lawinsport.com/item/cas-press-release-cas-dismiss-appeal-filed-by-irish-fa
- https://www.tas-cas.org/fileadmin/user_upload/Code_2019__en_.pdf
- https://sportstar.thehindu.com/athletics/caster-semenya-cas-ruling-hypoandrogenism-ruling-explainer/article27001934.ece
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